United States Constitution
A written constitution of government such as the U.S. Constitution
presents a characteristic set of problems for leadership: meeting the
demands of the people for the functions government can provide, while
protecting the rights of every person, not only from private, natural or
external threats, but from government itself and from tyrannical
majorities.
A written constitution, unlike an unwritten parliamentary system of
government, is a supreme law that supersedes later laws that conflict
with it, unless they are adopted as amendments according to the
procedures prescribed in the original constitution. It derives its
primary legitimacy not from current assent but from an original
historical constituent act of ratification, and no official act, no
matter how popular, can be considered legitimate unless it is logically
derived from an authorization contained in the written constitution as
amended, and as originally understood.
The political theory on which the U.S. Constitution is based is that a
society is created by a social contract, or compact. The main proponent
of this theory was John Locke, who developed it in his Second Treatise
on Government, published in 1690. Although it is possible for a new
society to be created by adults coming together and explicitly agreeing
to form a new society, people are initially inducted into an existing
society by their parents or guardians, beginning with a filial contract
between parent and child, which is gradually transformed into a social
contract between the child and the other members of the society, through
a process of socialization, through which the child makes the transition
from being a good child to being a good citizen. The essential terms of
the social contract are that its members will mutually defend the
exercise of one another's rights, from whatever might impair such
exercise.
Every constitutional right is a claim against an affirmative action of
government, and complementary to the exercise of a delegation of power
to that government. A constitutional provision that protects a right
restricts powers, and a delegation of a power restricts rights. A
challenge for leadership is to define the line separating the two
spheres of action, and to separate and confine the actions of civilians
and officials within their proper spheres.
The written constitution ratified in 1788, and the subsequent Bill of
Rights, the first ten amendments, declared various rights, with the
Ninth Amendment providing for unenumerated rights that complement
delegated powers, but the Founders did not have confidence in the
effectiveness of such declaratory provisions, which might be easily
subverted by interpretation. They rather relied on structural and
procedural provisions, which divided the powers of government, allowed
the divisions to check the actions of one another, and defined
procedures by which departures from constitutional compliance might be
corrected. Some procedures were permissive, allowing for the exercise of
discretion, and others were mandatory, constrained by defined duties.
In the U.S. model, there are actually two separate constitutions: an
unwritten constitution of the society, and a written constitution of the
government. The terms of the social constitution are that decisions be
made by conventions, or deliberative assemblies, called by proper
notice, and conducted by established rules of procedure that comprise
due process. A convention may consist of such things as a general
election or referendum, in which the voting members of the society
function as a convention of the whole, a constitutional convention which
may draft or ratify a written constitution of government, a legislature
called under the terms of a written constitution, a town hall meeting, a
judicial court, a grand jury to conduct an investigation and make a
report of its findings, a trial jury to render a verdict, or a militia
called to conduct defensive operations.
The U.S. model was a reaction to the British parliamentary model, which
had no written constitution of government except statutes adopted by
majority vote of the House of Commons, royal decrees, or key court
decisions precedents that might be sustained by tradition, but which
can be overturned at any time by the House of Commons, sitting as a kind
of ongoing constitutional convention one that can make its own rules
for who may be elected to it and how. The result is the consolidation of
power within a single legislative body and a bureaucratic civil service
that can easily impair public rights and leave abused persons without
the means to seek adequate redress.
Distributed Powers
The problem for leadership is further complicated by the fact that the
powers of government are not delegated to a single unitary hierarchy,
but are distributed, or separated. A key design objective of
constitutional government is to avoid excessive or unbalanced
concentrations of power, mainly by dividing it among many branches and
individuals, so that abuses by any can be blocked or corrected by the
combined action of others. The main separation of powers was between the
central government and the several states, a system called federalism.
Within the central government, powers were divided between the
executive, judicial, and legislative branches, and the Congress the
legislative branch was divided into two houses, the Senate and House
of Representatives. By legislation, the executive branch was further
divided and subdivided into departments, the judicial branch into a
system of general and specialized trial and appellate courts with
various geographic and subject jurisdictions, and the houses of Congress
into committees and subcommittees, each with their own staff agencies.
The constitutions of each of the states followed a similar design, with
the exception of Nebraska, which has a unicameral, or one-house,
legislature. Similar separations of powers were done in the territorial
governments set up for incorporated territories destined to become
states.
In a constitutional republic such as the United States, the people,
acting collectively through election, referendum or convention, rather
than a monarch or dictator, is the sovereign, or supreme authority, and
as such all officials must be accountable to the people by a chain of
command that leads back either to officials elected by the people or to
bodies, like juries, selected by lot, a process called sortition, from
among the people. The appointment, supervision, promotion, discipline,
and removal of every official is supposed to be based on how well he or
she performs his or her duties under the authority of the Constitution,
more than on how well such performance might please the policy
preferences of transient majorities.
Although a constitutional republic is democratic in being accountable to
the people, it is not usually a majoritarian democracy, in that
decisionmaking is moderated by procedures and structures designed to
require deliberation, and sometimes by rules requiring approval not just
by simple majorities, but by supermajorities, or by majorities in a
majority or supermajority of levels or branches to which power is
distributed. Thus, amendments to the Constitution require either
proposal by a two-thirds vote in each house of Congress, or application
by majorities of two-thirds of the state legislatures for a convention
to draft amendments, followed by ratification by the majorities of the
legislatures of, or of conventions in, three-fourths of the states.
Such procedures and structures confer on certain officials or groups the
power to veto, or block, action of various kinds, so that to get action,
it is necessary to convince all of the elements whose approval is
required. Thus, the President can veto any act of Congress, although
that veto can be overridden by a two-thirds vote of both houses.
However, he can also refuse to enforce an act of Congress, or sequester
the funds for its implementation, a controversial move that can be
overcome only by impeachment and removal of the President from office,
or by withholding other legislation he might want passed, or
appointments he might want approved.
Any federal court can declare or find a statute or other official act
unconstitutional, and refuse to give it effect by not sustaining it. If
the decision is made by an appellate court, the practice is to treat
that decision as a precedent which effectively nullifies that act not
only in that particular case but for similar cases in that court's
jurisdiction. If the declaration or finding is sustained on appeal to
the highest court, the Supreme Court, the act is effectively nullified
for similar cases nationwide. Although such a decision does not remove a
statute from the records, by the doctrine of stare decisis judges feel
bound to follow the precedent, making further enforcement of that act
infeasible.
Veto groups can also operate in the Legislative branch. The Senate can
block appointments by the President by such procedures as refusing to
hold committee hearings on nominations. Committees can refuse to pass
nominees to the full Senate, and in the full Senate, members may block
action by use of a filibuster, or extended debate intended to prevent
business from proceeding, which requires a 60 percent supermajority to
terminate.
A winner-take-all system of electing legislators by majority votes from
states or single-member districts, together with a nationwide
presidential election in which each presidential candidates seeks to
also win the election of members of his party to Congress, tends to
result in a two-party system, as each main party adjusts its messages to
win enough swing voters to exceed 50 percent. One effect of this,
however, is that dedicated single-issue constituency groups can become
"veto blocks" that may not be able to gather enough support to get their
legislation passed, but can block legislation they don't like and defeat
candidates who don't at least keep their causes alive. They can also
often negotiate the appointment of their partisans to key positions.
The proliferation of single-issue groups means that assembling governing
coalitions and placing people in key positions to achieve needed action
can be difficult, but this was intended by the Framers of the
Constitution. It was expected that most of the situations requiring
rapid response could be handled through general legislation and
appointees with a certain amount of legislated discretion, and that most
new situations that such general legislation did not anticipate would
allow enough time to build the kind of consensus needed to adopt new
legislation. This has led to some tension between advocates of immediate
response to "emergencies" and advocates of deliberation within
constitutional structures and procedures, and some of that tension has
resulted in departures from constitutional compliance.
Some of those departures have become entrenched, and supported by
politically powerful constituencies, who often attempt to conceal the
noncompliance with assertions that the established practices amount to
"informal amendments" to the "living" Constitution, even though they are
not formal amendments to the text. The problem with this elevation of
practices to constitutional status, of course, is that once begun there
is no end to it, and if allowed to continue would render the written
Constitution a dead letter and reduce all law to politics or force.
This displacement of the written Constitution with practice is sometimes
discussed as the doctrine of "legal realism", which defines "law" as
"what judges do" or can be expected to do, even if what they do is
inconsistent with the written Constitution as originally understood.
Although it is accepted that everyone has the duty to resolve conflicts
of law, including conflicts with the Constitution, in any enforcement of
law, and that everyone has the duty to help enforce the law and not just
to obey it, the fact that judges get cases last puts them in a position
that is sometimes attacked as judicial supremacy by those who think that
judicial practice is inconsistent with or unauthorized by the written
Constitution. This has been an ongoing tension since the country was
founded.
Persuasion
In any political or legal system, leadership ultimately comes to either
educating and persuading decisionmakers to adopt one's proposals, or
replacing them with other decisionmakers who will. In a constitutional
system like the United States, with powers and duties distributed among
multiple officials, that means persuading or replacing multiple
officials, which may require persuading or replacing the constituencies
of those decisionmakers, the networks of lower-level decisionmakers
whose own decisions persuade or replace higher-level decisionmakers.
Ultimately, that may come down to the level of the individual voter.
Although persuading a few higher-level decisionmakers may be done
through personal communications, one may not have access except through
chains of lower-level decisionmakers, many of whom may have agendas of
their own that conflict with the program of the reformer. Persuading
many individual voters, however, may not be feasible through direct
communications, and may require marketing methods with high costs and
limited effectiveness, competing as they must with demands from work and
family, and tastes for entertainment.
When the country was founded, a person could get elected to office
without having to raise or spend much money to market his candidacy.
There was sufficient demand for political information that it was
profitable for newspapers to publish entire speeches of candidates, with
the expectation this would sell more copies. However, the political
culture has changed so that too many people now resist political
information, compelling candidates to resort to expensive marketing
campaigns that can break through the barriers and at least achieve name
recognition and a positive image.
The Framers designed the Constitution with the expectation that
officials would be essentially independent of one another, unduly
influenced, if at all, mainly by things like salaries and prospects for
reappointment or re-election. They perhaps failed to fully anticipate
that, to achieve any result in a divided governmental system, people had
to put together prevailing coalitions which would tend to persist from
one issue to another and emerge into parties or, as the Founders feared,
factions, that would come to exert continuing control over offices and
officials in ways that would defeat the separation of powers. The
Founders feared too much power being gathered into the same hands, but
the same hands can be a faction as well as an individual, and a single
faction can dominate all of the levels and branches of government to the
exclusion of the others.
The problem the Framers confronted, and perhaps inadequately solved, was
what came to be studied by the 20th century as the public choice
problem, beginning with the work of James M. Buchanan and Gordon
Tullock, set out in The Calculus of Consent: Logical Foundations of
Constitutional Democracy. They approached politics through game theory,
and showed how people in a society would tend, over time, to involve
themselves in the public decisionmaking process in such ways, and to
such degrees, as seemed likely to them to pay off, less in the
satisfaction that comes from exercising civic duty, than in the material
benefits of the public decisions that they could expect to gain for
themselves or their friends. Persons would tend not to invest their time
and money in the political process unless they expected to profit from
that investment. Decisions that had large benefits or costs for some
persons would cause those persons to become involved in influencing
those decisions, while those for whom the benefits or costs were small
would not have a sufficient incentive to invest their influence in ways
that would affect such decisions. Therefore, a small faction could gain
a large benefit by contriving decisions that did so by imposing only
small costs on the general population, at a level below the threshold
that would trigger their involvement. This made the political process as
a channel for what is called rent-seeking behavior, which is the
diversion of wealth from producers to persons who invest not in
production but in the processes of politics and government.
In seeking to avoid excessive or unbalanced concentrations of power in
the public sector, the Founders neglected to provide for the emergence
in the private sector of giant corporate entities that could accrue
power that could challenge that of governments, and come to exercise
undue influence over government. This has emerged to take many forms:
Banks and financial institutions, especially those that loan money to
government to support its operations. Contractors, especially in the
defense industry. Labor unions. Trade associations. Eleemosynary
institutions. Political party organizations. Lobbying groups. Large
media organizations. These tend to seek to exercise control by either
getting their people appointed or elected to key positions at all levels
of key departments, or having handlers for every key position who may
assume a position of influence in which their official can't or won't
make a decision contrary to the handler's wishes, so that the handler
comes to function as the real decisionmaker, in a kind of shadow
government that is parallel to the legal government.
This pattern can be more clearly seen in a parliamentary system like
that of Britain, where the majority party appoints the official
ministers of government, but where the party out of power designates
shadow ministers for every department, who may exercise more real
influence than the official minister over the lower level civil servants
of the ministry, who may have been appointed by that party out of power,
and might expect to be promoted if it regains power. Thus a party that
has appointed most of the bureaucrats might expect to continue in real
power even if it loses an election. The same applies to special
interests that function as parties unto themselves.
Since the adoption of a civil service system, the United States has had
a similar problem with shadow governance, for while the reform was
intended to replace political appointees lacking merit with nonpartisan
professionals, what has actually happened is only to make it more
difficult for a party that wins elections after a period of dominance by
another party to actually govern and implement its policies. The civil
service protections have also allowed bureaucracies to become power
centers themselves, a constituency often uniquely situated to protect
its own interests. The internal politics of organizations is just as
contentious as the external politics we see in elections and referenda,
and much more difficult to expose and hold accountable.
The problem for leadership in a constitutional republic is to assemble
and sustain a winning coalition on an issue, while avoiding opposition
from veto blocks.
-- Jon Roland
Further reading:
Ernest Barker, ed., Social Contract, London: Oxford U. Press, 1960.
Contains essays: John Locke, An Essay Concerning the True Original,
Extent, and End of Civil Government; David Hume, Of the Original
Contract; Jean-Jacques Rousseau, The Social Contract.
Locke retrieved August 18, 2003 from
http://www.constitution.org/jl/2ndtreat.htm . Hume retrieved August 18,
2003 from http://www.constitution.org/dh/origcont.htm . Rousseau
retrieved August 18, 2003 from http://www.constitution.org/jjr/socon.htm
.
James Madison, Notes of Debates in the Federal Convention, 1840. New
York: W.W. Norton & Co., 1987. Retrieved August 18, 2003 from
http://www.constitution.org/dfc/dfc_0000.htm . Vol. 5 of Jonathan
Elliot, The Debates in the Several Conventions on the Adoption of the
Federal Constitution, retrieved August 18, 2003 from
http://www.constitution.org/elliot.htm .
James Madison, Alexander Hamilton, John Jay, The Federalist, 1787-88.
New York: Bantam, 1989. Retrieved August 18, 2003 from
http://www.constitution.org/fed/federa00.htm .
Bernard Schwartz, The Roots of the Bill of Rights, New York: Chelsea
House, 1980. See also the Documentary History of the Bill of Rights at
http://www.constitution.org/dhbr.htm .
Leonard W. Levy, Original Intent and the Framers' Constitution, New
York: Macmillan, 1988.
Herman Belz, A living constitution or fundamental law?, New York: Roman
& Littlefield, 1998, retrieved August 18, 2003 from
http://www.constitution.org/cmt/belz/lcfl.htm .
James M. Buchanan and Gordon Tullock, The Calculus of Consent: Logical
Foundations of Constitutional Democracy, Library of Economics and
Liberty. Retrieved August 18, 2003 from
http://www.econlib.org/library/Buchanan/buchCv3Contents.html .
J. Patrick Gunning, Understanding Democracy: An Introduction to Public
Choice, Constitution Society. Retrieved August 18, 2003 from
http://www.constitution.org/pd/gunning/votehtm/cont.htm .
Everett Rogers, Diffusion of Innovations, New York: Free Press, 2003.
M. J. C. Vile, Constitutionalism and the Separation of Powers,
Indianapolis: Liberty Fund, 1998.
Samuel H. Beer, To Make a Nation: The Rediscovery of American
Federalism, New York: Belknap, 1998.
J. Roland Pennock, ed., Due Process, New York U. Pr., 1977.
Godfrey Lehman, We the Jury: The Impact of Jurors on Our Basic Freedoms:
Great Jury Trials of History, New York: Prometheus, 1997.
Kevin W. Hula, Lobbying Together: Interest Group Coalitions in
Legislative Politics, Washington, DC: Georgetown University Press. 1999.
Harvey Yorke, The Candidate's Handbook For Winning State and Local
Elections. Revised by Carl Yorke, 2002. Available from
http://www.candidateshandbook.com .
Harry Helms, Inside the Shadow Government: National Emergencies and the
Cult of Secrecy, Los Angeles: Feral House, 2003.